Grassley Statement at a Hearing on the Nomination of Judge Brett M. Kavanaugh to the U.S. Supreme Court

Prepared Statement by Senator Chuck Grassley of Iowa

Chairman, Senate Judiciary Committee

Hearing on the Nomination of Judge Brett M. Kavanaugh to be an
Associate Justice of the U.S. Supreme Court

September 4,
2018

One of the
Senate’s most solemn constitutional duties is to provide advice and consent to
the President on his nominations of Supreme Court justices.

We are here
this week to hear from Brett Kavanaugh, to hear about his exceptional
qualifications, his record of dedication to the rule of law, and his
demonstrated independence and his appreciation of the importance of the
separation of powers.

Indeed, to
protect individual liberty, the Framers designed a government of three co-equal
branches, strictly separating the legislative, executive and judicial powers.
The Framers intended for the Judiciary to be immune from the political
pressures the other two branches face. That is so that judges would decide
cases according to the law and not according to popular opinion.

Now, 230
years after ratification, our legal system is the envy of the world. It
provides our people stability, predictability, protection of our rights and
equal access to justice. But this is only possible when judges are committed to
the rule of law.

Our legal
system’s success is built on judges accepting that their role is limited to
deciding cases and controversies. A good judge exercises humility and makes
decisions according to the specific facts of the case and according to the law.

A good judge
never bases decisions on his preferred policy preferences.

A good judge
also has courage, recognizing that we have an independent judiciary to restrain
government when it exceeds its lawful authority.

As President
Andrew Jackson said, “All the rights secured to the citizens under the
Constitution are worth nothing, and a mere bubble, except guaranteed to them by
an independent and virtuous Judiciary.”

Confirmation
hearings for Supreme Court nominees are an important opportunity to discuss the
appropriate role of judges. As I see it, and I expect many of my colleagues
will agree, the role of the judge is to apply the law as written, even if the
legal result is not one the judge personally likes.

As Justice
Scalia was fond of saying, if a judge always likes the outcomes of cases he
decides, he is probably doing something wrong. I don’t want judges who always
reach a “liberal” result or a “conservative” result; I want a judge who rules
the way the law requires.

Judges must
leave the lawmaking to Congress.

Now, some
have a very different view of what a judge’s role should be. According to this
view, judges should decide cases based on a particular outcome in order to
advance their politics. But the American people don’t want their judges to
pick sides before they hear a case. They want a judge who rules based upon what
the law commands.

This is the
reason why all Supreme Court nominees since Ginsburg have declined to offer
their personal opinions on the correctness of precedent. Seeking assurances
from a nominee on how he will vote in certain cases or how he views certain
precedent undermines judicial independence and essentially asks for a promise
in exchange for a confirmation vote. It’s unfair and unethical. Indeed, what
litigant could expect a fair shake if the judge has already pre-judged the case
before the litigant even enters the courtroom?

I expect
Judge Kavanaugh will follow the example set by Ginsburg, and all the nominees
that followed her, that a nominee should offer “no hints, no forecasts, no
previews” on how they will vote.

Justice
Kagan, when asked about Roe v. Wade, said the following: “I do not
believe it would be appropriate for me to comment on the merits of Roe v.
Wade other than to say that it is settled law entitled to precedential
weight. The application of Roe to future cases, and even its
continued validity, are issues likely to come before the Court in the future.”
Senators were satisfied with these answers on precedent. They should be
satisfied if Judge Kavanaugh answers similarly.

This is my
fifteenth Supreme Court confirmation hearing since I joined the Committee in
1981. Thirty-one years ago, during my fourth Supreme Court confirmation
hearing, liberal outside groups and their Senate allies engaged in an
unprecedented smear campaign against Judge Robert Bork.

As Mark
Pulliam said in an op-ed over the weekend, “The borking of Robert Bork taught
special-interest groups that they could demonize judicial nominees based solely
on their worldview. Worse, character assassination proved an effective tactic,
nearly sinking Justice Clarence Thomas’s appointment four years later.”

But he also
said, “By confirming Judge Kavanaugh, the Senate can go some way toward atoning
for its shameful treatment of Robert Bork 31 years ago.”

Judge
Kavanaugh is one of the most qualified nominees – if not the most qualified
nominee –I have seen. Judge Kavanaugh is a graduate of Yale Law School. He
clerked for three federal judges, including the man he is nominated to replace.
He spent all but three years of his career in public service and has served as
a judge for twelve years on the D.C. Circuit – the most influential federal
circuit court. He has one of the most impressive records for a lower court
judge in the Supreme Court. In at least a dozen separate cases, the Supreme Court
adopted positions advanced by Judge Kavanaugh.

A review of
Judge Kavanaugh’s extensive record demonstrates a deep commitment to the rule
of law. He has written eloquently that both judges and federal agencies are
bound by the laws Congress enacts. And he has criticized those who substitute
their own judgments about what a statute should say for what the statute
actually says.

After the
President nominated Judge Kavanaugh, I said this would be the most thorough and
transparent confirmation process in history. It has proven to be. Judge
Kavanaugh has a twelve-year record on the D.C. Circuit, where he authored 307
opinions and joined hundreds more—amounting to more than 10,000 pages.

He submitted
more than 17,000 pages of speeches, articles, and other material to the
committee, along with his 120-page written response to the Senate Questionnaire—the
most robust ever submitted to a Supreme Court nominees. These add up to more
than 27,000 pages of Judge Kavanaugh’s record already available to the American
people.

And we
received just shy of half a million pages of emails and other documents from
Judge Kavanaugh’s service as an executive branch lawyer—which is more than we
received for the last five Supreme Court nominees combined. Every one of
these more than 483,000 pages of Executive Branch records are available to any
senator, anytime, 24/7.

And I pushed
for federal officials to significantly expedite the public disclosure process
under federal law, so that all Americans have online access to more than
290,000 pages of these records right now on the Judiciary Committee website.

In short,
the American people have unprecedented access and more materials to review for
Judge Kavanaugh than they ever had for a Supreme Court nominee. And to support
the review of Judge Kavanaugh’s historic volume of material, I’ve worked to
ensure that more Senators have more access to more material than ever.

Despite this
unprecedented transparency, some of my colleagues on the other side have come
up with every excuse for resisting this hearing. Indeed, some pledged to
oppose Judge Kavanaugh from the moment of announcement.

The Minority
Leader said that he would fight Judge Kavanaugh with everything he’s got. And
for the most part, his side has tried tactic after tactic to delay and obstruct
this process.

One of their
tactics was to try to bury this Committee in millions of pages of irrelevant
paperwork. Indeed, the Ranking Member even made the unprecedented demand for
the search of every email and every other document from every one of the
hundreds of White House aides who came and went during the entire eight years
of the Bush Administration. This would have taken months and months to
complete. As I have repeatedly stated, I am not going to put the American
taxpayers on the hook for the Democratic leaders’ fishing expedition.

Democratic
leaders made the unprecedented demand for documents from Judge Kavanaugh’s time
as the White House Staff Secretary, the presidential aide in charge of managing
the paper flow to and from the President. These Staff Secretary documents are
both the least revealing of Judge Kavanaugh’s legal thinking and the most
sensitive to the Executive Branch. They’re not revealing of his legal thinking
because the Staff Secretary’s primary responsibility is making sure the
President sees advice from other advisors, not sharing advice—let
alone legal advice—of his own. These documents are the most sensitive to the
Executive Branch because they contain advice transmitted directly to the
President and are at the heart of executive privilege.

You will
hear my Democratic colleagues argue that we are hiding documents—that we have
only received 6 percent of Judge Kavanaugh’s Executive Branch documents.

This is
simply wrong.

They
calculate their phony 6 percent figure with two inaccurate numbers. First,
their 6 percent figure counts the estimated
page count by the career archivists at the National Archives, based upon their
historical practice, before the
unprocessed emails and attachments are actually reviewed.

With Judge
Kavanaugh’s White House emails we have received, the actual number of pages ended up being significantly less than the
number the National Archives estimated before its processing and review. One
reason is because we were able to use technology and cull out the exact
duplicate emails. Instead of having to read 13 times an email that Judge
Kavanaugh sent to 12 White House colleagues, we only had to read the email
once.

Second, the
6 percent figure counts millions and millions of pages of irrelevant Staff
Secretary documents that we never even requested nor need.

More
importantly, we requested 100 percent of the non-privileged documents from
Judge Kavanaugh’s time as an Executive Branch lawyer.

As I
indicated in my document request, I did not expect to receive privileged
documents. Just as we don’t ask for staffers’ communications with senators when
Senate staffers are nominated—Justice Kagan, for example—we shouldn’t expect
similar communications with the President to be disclosed.

A
significant portion of the privileged documents contain deliberations and
advice regarding the nomination of judges, and it’s critical that these
deliberations remain confidential to guarantee that the current and all
future presidents continue to receive candid advice.

Following
the recommendation of former President George W. Bush, the White House claimed
a reasonable number of documents as privileged, similar to the number of
documents that were privileged during Chief Justice Roberts’s confirmation.
Then, the Department of Justice informed the Committee that it withheld as
privileged roughly 1 in 10 documents sought from the Department.

My document
request was modeled after the document request then-Chairman Leahy sent during
Justice Kagan’s nomination. At that time, he requested a large number, but not
all, of her Executive Branch records. Despite Republican questions, he didn’t
request internal documents from her time as Solicitor General because both
sides agreed the documents were too sensitive for disclosure.

If Solicitor
General documents were too sensitive to request, then by the same logic, White
House Staff Secretary documents are even more sensitive, because they contain
candid advice sent directly to the President.

Complaints
that the committee’s review of an unprecedented volume of documents is somehow
insufficient is simply an attempt to distract from Judge Kavanaugh’s extensive
and very impressive record.

In 2009,
then-Chairman Leahy explained that Justice Sotomayor’s judicial record “is the
best indication of her judicial philosophy. We do not have to imagine what kind
of a judge she will be because we see what kind of a judge she has been.”

Similarly,
we know what kind of judge Kavanaugh will be, because we know what kind of
judge he has been for the last twelve years on the most influential circuit
court.

Democratic
leaders tried their best to stop today’s hearing from happening. For all their
talk about transparency, what they most feared was a chance for the American
people to hear directly from Judge Kavanaugh.

Based on
Judge Kavanaugh’s extensive record, he is the kind of judge Americans want on
the Supreme Court—committed to the rule of law, protective of our
constitutional rights, and unfailingly independent.